Untitled Texas Attorney General Opinion

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The Attorney General of Texas
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February 2, 1982 ,
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MARK WHITE 3
AttorneyGeneral ,* ~'..----&J&g
Honorable Warren G. Tabor, Jr. opinion No.MW-437
Supreme Court Building
P. 0. Box 12548
District Attorney
Austin. TX. 78711 Hockley County Courthouse Re: Interpretation of article
512,475.2501 Levelland, Texas 79336 2340. V.T.C.S.
Telex SlOB74-1367
Telecopier 51214750286
Dear Mr. Tabor:
1SO7 Main St.. Suite 1400 Your predecessor in office requested an Attorney General Opinion
Dallas. TX. 75201 on questions arising out of the following fact situation: The wife of
214,742.9944 a county commissioner for Hockley County "as employed as deputy clerk
in the county clerk's office. The county clerk appoints his deputies.
4924 Alberta Ave.. Suite 190
and article 3902, V.T.C.S., prohibits the commissioners court from
El Paso, TX. 79905 attempting to influence the clerk's choice. V.T.C.S. art. 1938;
915/533-3484 Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Austin 1978,
writ ref'd n.r.e.). The salary of a deputy clerk is, however, set by
the commissioners court. V.T.C.S. arts. 3902, 3912k, $1.
1220 Dallas Ave., Suite 202
Houston, TX. 77002
713165006ffi The deputy clerk held this position for almost seven years prior
to her husband's election as county commissioner. The county auditor
informed her that he could no longer authorize payment of her salary
SOS Broadway. Suite 312
as deputy clerk of Hockley County, citing Attorney General Opinion
C”bo.xk, lx. 79401
SOW’476238
H-993 (1977) as authority for his decision. Your questions
effectively ask for a re-examination of that opinion.
4308 N. Tenth, Suite 6 Attorney General Opinion H-993 (1977) determined that the wife of
McAllen, TX. 78501
a county commissioner could not serve as deputy tax collector. This
512iSS2-4547
conclusion was based on article 2340. V.T.C.S.. which stated as
follo"s:
200 Main Plaza, Suite 400
San Antonio, TX. 79205 Before entering upon the duties of their office,
512/225-4191
the countv
.- iudae
- and each commissioner shall take
the official oath, and shall also take a written
An Equal OpPoftunltyl oath that he will not be directly or indirectly
Affirmative Action EmPlOyW interested in any contract with, or claim against,
the county in which he resides, except such
warrants as mav issue to him as fees of office....
(Emphasis addeh).
The county paid the wife's salary, and the opinion concluded that the
community property laws gave her husband an interest in it. Family
Code 55.01.
p. 1501
Honorable Warren G. Tabor, Jr. - Page 2 (MW-437)
The predecessor of article 2340, V.T.C.S.. was enacted in 1876.
Act of July 22, 1876. Acts 1876, 15th Leg., ch. LV, 016. at 53. It
read as follows:
Neither the County Judges nor any of the
Commissioners shall enter upon the duties of their
offices until they shall have first taken the oath
of office prescribed by the Constitution, and
shall also take an oath that they will not be
directly or indirectly interested in any contract
with a claim against the county in which they
reside, except such warrants as may issue to them
as fees of office....
The original enactment thus did not differ substantially from the
version considered in Attorney General Opinion H-993 (1977). See also
Acts 1981, 67th Leg., ch. 527, 53, at 2230 (amending article 2340,
V.T.C.S.). We note that the 1876 Session Laws refer to "any contract
with 5 claim against the county." (Emphasis added). The substitution
of "au for "orw appears to be a typographical error, corrected in the
first codification of the Texas statutes, which was published pursuant
to legislative authorization. R.S. 1879, art. 1512; -see Acts 1879,
16th Leg., ch. CLI, at 166.
A statute should be construed to give it the effect and scope
intended by the legislature. State V. Shoppers World, Inc., 380
S.W.2d 107 (Tex. 1964). It should be construed as understood at the
time of its passage. Railroad Commission V. Texas and N.O.R. Company,
42 S.W.2d 1091 (Tex. Civ. App. - Austin 1931, writ ref'd). A statute
will be construed in light of social and business customs at the time
of its passage. Co"si"s v. Sovereign Camp, W.O.W., 35 S.W.2d 696
(Tex. 1931).
When the predecessor of article 2340, V.T.C.S., was enacted,
married women remained under numerous disabilities of coverture. The
husband's domicile became that of the wife. Hare V. Hare, 10 Tex. 355
(1853); Flowers V. State, 3 S.W.2d 1111 (Tex. Grim. App. 1928). He
had the sole power to manage and control his wife's separate property,
short of disposition. Act of March 13. 1848, General Laws 1848. 2d
Leg., ch. 79, 52, at 78; see R.S. 1879. art. 2851. A wife could not
legally acknowledge a conveyance of her separate property or the
homestead executed by her unless it was explained to her apart from
her husband. Acts 1846. 1st Leg., at 156; sse R.S. 1879, art. 4310..
The purpose of this provision was apparently- protect the wife from
unwillingly expressing agreement to the conveyance out of fear of her
husband. submissiveness, or lack of education and business experience.
Texas Legislative Council, Legal Status of Married Women in Texas, A
Report to the 55th Legislature 63-65 (1956); see generally Womack v.
Womack. 8 Tex. 397 (1852).
p. 1502
Honorable Warren G. Tabor, Jr. - Page 3 (MW-437)
A married woman could not contract except for necessaries or for
the benefit of her separate property. Cruger v. McCracken, 30 S.W.
537 (Tex. 1895); see Lee v. Hall Music Company, 35 S.W.2d 685 (Tex.
1931). She could= enter into a business partnership in the absence
of a statute authorizing her to do so. R. A. Brown v. Chancellor, 61
Tex. 437 (1884); Bradford v. Johnson, 44 Tex. 381 (1876). A wife
could not maintain an action in her own name to collect commissions
due her under a brokerage contract made with her husband's consent.
Lilly v. Yeary. 152 S.W. 823 (Tex. Civ. App. 1913, no writ).
The Texas Constitution of 1876 excluded women from juries. Tex.
Const. art. V, §§13, 17 (1876). It restricted the vote to men.
article VI, section 2. Texas Constitution (1876). and provided that
state senators and representatives had to be qualified voters. Id.
art. III, 506, 7. Only in 1924 did the supreme court consider whet=
a woman could hold public office, answering this question of first
impression in the affirmative. Dickson v. Strickland, 265 S.W. 1012,
1019-23 (Tex. 1924).
At the time article 2340 was first enacted, and for some time
thereafter, a married woman was subject to significant restrictions
with respect to property management, business activity, and
participation in public life. Despite the protections provided her by
community property law, her legal existence was in many ways merged
with her husband's. See Cartwright v. Hollis, 5 Tex. 152 (1849).
Bobbit, Contractual Power of Married Women in Texas, 1 Tex. L. Rev.
281 (1923). Texas statutes and judicial decisions of the late
nineteenth century are infused with the assumption that a married
woman's abilities and obligations relegated her to the home. See
Cullers v. James, 1 S.W. 314 (Tex. 1886). In view of this assumption
regarding a married woman's proper role in society, it is exceedingly
unlikely that the legislature of 1876 contemplated that a
commissioner's wife might hold county employment or intended that
article 2340, V.T.C.S.. reach his community interest in her salary
claim. Since the commissioner's fees of office are specifically
exempted by the statute, it seams consistent to also apply such
exemption to his community interest in his wife's salary. Attorney
General Opinion H-993 (1977) construed article 2340 overly broadly and
in isolation from social conditions prevailing when it was enacted.
In our opinion, a county commissioner whose wife receives a
salary for county employment is not thereby placed in violation of his
article 2340 oath. To the extent that Attorney General Opinion H-993
(1977) is inconsistent with this opinion, it is hereby overruled.
SUMMARY
A county commissioner whose spouse holds a
salary claim against the county does not thereby
violate his oath under article 2340, V.T.C.S.,
p. 1503
Honorable Warren G. Tabor. Jr. - Page 4 (m-437)
despite his community property interest In that
claim. Attorney General Opinion H-993 (1977) is
overruled to the extent it is inconsistent with
this opinion.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James Allison
Jon Bible
p. 1504